Discriminatory Practitioners Pose a Threat to Justice

To the Editor:

In October 2018, I read an article, “Sounding the Alarm on a Misguided Conduct Rule.” The author came out strongly to an amendment to the Rules of Professional Conduct 8.4 forbidding any conduct that discriminates against protected classes. I disagreed with it at the time, but had a lot on my plate, and just didn’t have time to address the problem.

But there it was, gnawing in the back of my mind, the gadfly of a misguided opinion. The author believes that discrimination or harassment does not imply moral turpitude: “… The problem with making harassment and discrimination actions of professional misconduct goes deeper than just the fact they do not inherently involve moral turpitude …”

He could not be more wrong. I am a white, heterosexual male. As a result, I have an identity related to those traits I never asked for, and I was simply imbued with at birth. The benefit of this accident of birth for me, however, is that I have enjoyed enormous advantages. I have enjoyed being socially considered the “default” human by dominant American society and media. I get to be judged by the content of my character rather than the color of my skin, especially by those in positions of power, who frequently look a lot like me. I do not need to second guess revealing the gender of my partner; I know that my relationship will be acceptable in all anticipated social circumstances. I am also not burdened with a very realistic fear of encountering the opposite sex in a dark parking lot, nor am I assumed to be lacking in “manly” knowledge. These advantages were not earned, they have nothing to do with my merit or abilities, and they are largely invisible to me because they are the absence of a barrier.

The same is not true for those who suffer from discrimination. Their barriers are just as real to them as they are (usually) invisible to me.

Let us not mince words, discrimination and harassment is moral turpitude. If an attorney cannot enjoy a night out with friends from the office, or conduct business without knowingly acting in a harassing or discriminatory fashion, then there is an entirely legitimate concern that they cannot actually practice law or execute justice without those attitudes compromising their abilities.

The Rule change also only addresses the most grievous forms of discrimination and harassment. The standard of knew or should have known only really covers situations of “I fired him because he is black,” or, “Isn’t this a job for a man?”

It does not cover the more insidious forms of discrimination which slip under the radar but nevertheless work to oppress protected classes by an aggregate of a thousand little burdens that weigh down progress. For example, women attorneys being mistaken for secretaries by their peers remains common, and operates in aggregate to reduce how seriously female attorneys are taken. This alone does not fall under that aegis of blatant discrimination that the rule change contemplates. Assuming that a black attorney is actually the client at a criminal proceeding still happens and reveals a deep, prejudicial and discriminatory set of assumptions that operates to slow the advancement of an entire racial segment of our society, but that single error would not constitute a knew or should have known violation of the contemplated Rule.

If an attorney finds it difficult to socialize without knowingly discriminating or acting in a harassing manner, then there is little doubt in my mind that they cannot be relied upon to represent a protected class in a proceeding, or to negotiate in good faith with a protected class. Such open prejudice is obviously corrosive to the practice of law, the administration of justice, and holders of such ideology should not be permitted to contaminate our judicial system.

The author closes his argument stating that harassment or discrimination should not be ignored but argues that the Bar discipline system is the wrong forum to handle these matters. Consider, however, the nature of the Bar should we ensure it is a haven for discriminatory practitioners. One could openly discriminate or harass, yet elude professional discipline because we collectively decided that these acts are not morally or ethically problematic.

We have a responsibility to our profession to ensure that threats to the execution of justice are not tolerated in our ranks. There is no honest argument to be made that discriminatory practitioners do not pose a threat to justice. Such a threat must be expelled, or at a minimum, reformed.

Philip Schreffler is an associate attorney and business litigator with Eno, Martin, Donahue.